Chik Wen Fei and Another v. Secretary for Justice

CACV 141/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 141 OF 2008

(ON APPEAL FROM HCAL NO. 20 OF 2008)

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BETWEEN

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Before:  Hon Yeung JA and Lam J in Court

Date of Hearing:  10 October 2008

Date of Decision:  17 October 2008

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D E C I S I O N

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Hon. Lam J (giving the decision of the court):

1.On 22 July 2008, we dismissed the appeal against the decision of Reyes J in refusing to grant leave for judicial review.

2.On 1 September 2008, the applicants acting in person issued an application for leave to appeal to the Court of Final Appeal.

3.In our Reasons for judgment of 29 July 2008, we drew attention to the decision of the Appeal Committee of the Court of Final Appeal in HLF v MTC [2004] 3 HKLRD 241 concerning what constitutes a judgment in civil cases for which application for leave to appeal to the Court of Final Appeal can be made under Section 22 of the Hong Kong Court of Final Appeal Ordinance.

4.In that decision, the Appeal Committee held that in respect of a matter for which leave is requires before the Court of Appeal will entertain an appeal, a refusal of such leave means that there is no judgment from the Court of Appeal for the purpose of Section 22 from which leave to appeal to the Court of Final Appeal can be granted.  The Appeal Committee primarily based the decision on the decision of the House of Lords in Lane v Esdaile [1891] AC 210.

5.The same approach had been applied by the House of Lords in respect of an intended appeal from a decision of the Court of Appeal in dismissing an appeal against a refusal to grant leave to apply for judicial review: see Re Poh [1983] 1 WLR 2.  The Court of Final Appeal referred to Re Poh [1983] 1 WLR 2 in HLF v MTC [2004] 3 HKLRD 241 at para.25.

6.However, there are conflicting authorities after Re Poh [1983] 1 WLR 2.  Contrast Ex p Eastaway [2000] 1 WLR 2222 with Kamper Reinsurance v Minister of Finance [2000] 1 AC1 and Ex p Burkett [2002] 1 WLR 1593.

7.Given that the Applicants are now acting in person, without the benefit of full legal arguments, we do not wish to come to a final conclusion on whether the rule in HLF v MTC [2004] 3 HKLRD 241 should be extended to the dismissal of appeal against refusal to grant leave for application for judicial review.

8.Section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance is not applicable since our decision is not a final judgment in a civil cause or matter where the matter in dispute amounts to or is of the value of $1,000,000, nor does the appeal involves claim or question to or respecting property or some civil rights amounting to or of the value of $1,000,000.

9.As regards Section 22(1)(b), the Applicants fail to demonstrate that the appeal involves question of great general or public importance.  We do not see any other reasons why the appeal should be submitted to the Court of Final Appeal for decision.  Our decision is based on well settled legal principle.  We concluded on the application of such principle to the facts of this case that the discretion should be exercised in the way Reyes J did.

10.There is no question of putting the administrative convenience for enforcement of law above the law itself.  As we said, if the Applicants had any grievance, they can pursue their proper redress after the conclusion of the criminal trial by way of criminal appeal if necessary. 

11.For these reasons, the Applicants’ motion is dismissed.  We also order the Applicants to pay for the Respondent’s costs of the motion, to be taxed if not agreed.

The 1^st & 2^nd Applicants in person